TM (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 92

Case No C5/2007/2314[2008] EWCA Civ 92
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. IA/06784/2006]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 25 th January 2008
Before
LORD JUSTICE DYSON
Between
TM (SRI LANKA)AppellantTHE SECRETARY OF STATERespondentFOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr A Mackenzie (instructed by Messrs Birnberg Peirce) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]I am proposing to give permission to appeal in this case. There are two principal points made by Mr MacKenzie. The first is that the immigration

judge said at paragraph 55 that he considered that:

“…he should be returned to Colombo and arrangements made for an escort to hand him over to a responsible agency in Colombo.”
The judge made no finding as to whether such arrangements would be available. It is arguable in the light of the decision in J v SSHD [2005] EWCA Civ 629 that he should have done so. The second point, also arising under paragraph 55, challenges the findings that:
“effective mechanisms would be available to reduce any possible risk of suicide on return to Sri Lanka.”
[2]The focus of this challenge is as to whether or not there would be available hospital and medical facilities to reduce the risk of suicide to this appellant. The only evidence as to the availability of such facilities was that given by Dr Kanagaratnam who, in particular at page 9 of his report, dealt with the availability of psychiatric treatment in Sri Lanka. In short, the doctor said that the appellant would not have access to such limited psychiatric services as are available in Sri Lanka in the regions to which he would return. He also says that post-traumatic stress disorder, which is one of the illnesses from which the appellant is suffering, remains underdiagnosed and that the services for the treatment for PTSD are not developed.[3]It was this evidence which formed the basis of a submission made on behalf of the appellant recorded at paragraph 23(v) of the determination that it would not be possible for the appellant to be treated in Sri Lanka for PTSD and depression. The further submission recorded at paragraph 48(A)(vi) was that the suicide of a returnee in September 2006 had demonstrated that the situation had slipped since 2004 when the peace process was intact.[4]The immigration

judge referred to the evidence of Dr Kanagaratnam, at paragraph 43:

“The doctor gives the opinion that only limited treatment is available in Sri Lanka for those with mental illness.”
There was no other evidence as to medical facilities in Sri Lanka. The finding at paragraph 55 that “effective mechanisms would be available to reduce any possible risk of suicide” therefore calls for an explanation. I would grant permission to appeal because both of these points seem to me to have prospects of success. There is a third ground of appeal which Mr Mackenzie would not seek to rely on if it stood alone, but which he seeks to rely on to support of his two main grounds. I give him permission to appeal in respect of that ground too.[5]Permission to appeal, court comprising of three judges, one of whom can be a High Court judge.

Order

Application granted.